State v. Kofoed

CONCLUSION
For the reasons discussed, we find no error in the judgment
of the compensation court review panel in affirming the award
as modified. The judgment is therefore affirmed.
A ffirmed.
StAte of NebrASkA, Appellee , v.
dAvid W. kofoed, AppellANt.
817 N.W.2d 225
Filed May 4, 2012. 	No. S-10-613.
1. Rules of Evidence: Proof. Under Neb. Evid. R. 404(3), Neb. Rev. Stat.
§ 27-404(3) (Reissue 2008), before a court can admit evidence of an extrinsic
crime or bad act, the State must prove by clear and convincing evidence, outside
the presence of the jury, that the defendant committed the extrinsic crime or
bad act.
2. Evidence: Words and Phrases. Clear and convincing evidence is that amount of
evidence that produces in the trier of fact a firm belief or conviction about the
existence of a fact to be proved.
3. Criminal Law: Judgments: Appeal and Error. An appellate court will affirm
a trial court’s ruling that the defendant committed an uncharged extrinsic crime
or bad act if, viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found with a firm conviction the essential
elements of the uncharged crime.
4. Evidence. In determining whether gaps in the chain of custody or alterations in
the evidence compromise the integrity of the State’s evidence as a whole, a court
decides the issue on a case-by-case basis, considering the following factors: the
nature of the evidence, the circumstances surrounding its preservation and cus-
tody, and the likelihood of intermeddlers tampering with the object.
5. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply,
the rules control the admissibility of evidence; judicial discretion is a factor only
when the rules make discretion a factor in determining admissibility.
6. Rules of Evidence: Appeal and Error. It is within a trial court’s discretion to
determine the relevance of evidence under Neb. Evid. R. 403, Neb. Rev. Stat.
§ 27-403 (Reissue 2008), and a trial court’s decisions regarding relevance will not
be reversed absent an abuse of discretion.
7. Evidence: Appeal and Error. When an appellate court reviews the sufficiency
of the evidence to support a conviction, it reviews the evidence in the light most
favorable to the prosecution. It determines whether any rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt. And
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard is the same: An appellate court does not resolve conflicts in the evidence,
STATE v. kOFOEd 	767
Cite as 283 Neb. 767
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

pass on the credibility of witnesses, or reweigh the evidence; such matters are for
the finder of fact.
8. Circumstantial Evidence: Words and Phrases. Circumstantial evidence is evi-
dence which, without going directly to prove the existence of a fact, gives rise to
a logical inference that such fact exists.
9. Convictions: Circumstantial Evidence. Circumstantial evidence is not inher-
ently less probative than direct evidence. In finding a defendant guilty beyond
a reasonable doubt, a fact finder may rely upon circumstantial evidence and the
inferences that may be drawn therefrom.
10. Circumstantial Evidence: Proof. The State is not required to disprove every
hypothesis of nonguilt that is consistent with the circumstantial evidence.
11. Judges: Recusal: Appeal and Error. A motion to recuse for bias or partiality is
initially entrusted to the discretion of the trial court, and the trial court’s ruling
will be affirmed absent an abuse of that discretion.
12. Judges: Recusal. Under the Nebraska Revised Code of Judicial Conduct, a judge
must recuse himself or herself from a case if the judge is actually biased against
a party or if the judge’s impartiality could reasonably be questioned.
13. Judges: Recusal: Presumptions. A defendant seeking to disqualify a judge
because of bias or prejudice bears the heavy burden of overcoming the presump-
tion of judicial impartiality. Absent a showing of actual bias or prejudice, a
litigant must demonstrate that a reasonable person who knew the circumstances
of the case would question the judge’s impartiality under an objective standard
of reasonableness.
14. Motions for New Trial. A new trial can be granted on grounds materially affect-
ing the substantial rights of the defendant.
15. Criminal Law: Motions for New Trial: Evidence: Proof. A criminal defendant
who seeks a new trial because of newly discovered evidence must show that if the
evidence had been admitted at the former trial, it would probably have produced
a substantially different result.
Appeal from the district Court for Cass County: rANdAll l.
rehmeier, Judge. Affirmed.
Steve Lefler, of Lefler & kuehl Law, for appellant.
Jon Bruning, Attorney General, and James d. Smith for
appellee.
Wright, C oNNolly, gerrArd, StephAN, mCC ormACk, and
miller-lermAN, JJ.
C oNNolly, J.
I. SUMMARY
The special prosecutor for Cass County charged the appel-
lant, david W. kofoed, with tampering with evidence, a
768 	283 NEBRASkA REpORTS

Class IV felony. kofoed was the supervisor of the Crime
Scene Investigation division for the douglas County sheriff’s
office (CSI division). The State charged that kofoed falsified
dNA evidence during the investigation of Matthew Livers
and Nicholas Sampson as suspects in the April 2006 murders
of Wayne and Sharmon Stock. The State later dismissed the
charges against Livers and Sampson and convicted different
suspects for the Stocks’ murders.
After a rule 4041 hearing, the court admitted evidence of
an uncharged extrinsic crime. The uncharged extrinsic crime
was kofoed’s alleged tampering of dNA evidence during the
2003 investigation of a child’s murder. The court found that
the State had proved the 2003 act by clear and convincing
evidence and had established independent relevance for offer-
ing the evidence at kofoed’s trial. It received the uncharged
extrinsic crime evidence as relevant to rebutting kofoed’s
claim that an accident or mistake accounted for his purported
finding of a victim’s dNA in a suspect’s vehicle during the
Stock murder investigation. The court also received the evi-
dence as relevant to whether kofoed acted with knowledge
and intent.
Following a bench trial, the court found kofoed guilty of
evidence tampering during the Stock murder investigation. In
summarizing its findings, the court emphasized that the 2003
and 2006 investigations had significant similarities. The court
found that in each case, kofoed had access to the victim’s
dNA specimens that investigators had previously collected
from the crime scene and—under unlikely circumstances and
despite other investigators’ failure to find such evidence—had
found the victim’s dNA evidence in a place that corroborated
the suspect’s statements implicating himself in the crime. The
court overruled kofoed’s motion for a new trial. It sentenced
kofoed to a term of incarceration of 20 months to 4 years.
II. ASSIGNMENTS OF ERROR
Regarding the rule 404 hearing, kofoed assigns that the
court erred as follows:
1 See Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue 2008).
STATE v. kOFOEd 	769
Cite as 283 Neb. 767

(1) in sustaining the State’s motion to admit evidence of his
alleged act of evidence tampering in 2003;
(2) in concluding that the State had shown a sufficient chain
of custody for the evidence presented to prove kofoed’s tam-
pering of evidence during the 2003 investigation; and
(3) in excluding kofoed’s testimony and his expert’s testi-
mony about dNA evidence that was found in different cases
under harsh conditions.
Regarding the trial, kofoed assigns that the court erred in
(1) overruling his motion for a directed verdict and (2) finding
him guilty.
Regarding his motion for a new trial, kofoed assigns that the
trial judge erred as follows:
(1) in failing to recuse himself from the proceeding; and
(2) in overruling his motion despite his claims that (a)
newly discovered evidence existed and (b) an investigator
had failed to turn over important notes to the special pros-
ecutor so that the information would be provided to kofoed’s
defense counsel.
III. ANALYSIS
1. SuffiCieNCy of the evideNCe to prove
kofoed fAlSified evideNCe duriNg the
goNzAlez murder iNveStigAtioN
(a) Standard of Review
We have often stated that it is within the trial court’s discre-
tion to determine the relevancy and admissibility of evidence of
extrinsic crimes or bad acts under rules 4032 and 404(2). And
we will not reverse the trial court’s decision in the absence of
an abuse of discretion.3 But the issue in appeals challenging the
admission of extrinsic crimes or bad acts is usually whether the
trial court correctly determined that the evidence was admis-
sible for a proper purpose or that it was independently relevant
for that purpose. But here, the challenge is whether the State
proved that kofoed committed the uncharged extrinsic crime of
falsifying evidence.
2 See Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008).
3 See State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011).
770 	283 NEBRASkA REpORTS

[1,2] Under rule 404(3), before a court can admit evidence
of an extrinsic crime or bad act, the State must prove by clear
and convincing evidence, outside the presence of the jury, that
the defendant committed the extrinsic crime or bad act. Clear
and convincing evidence is that amount of evidence that pro-
duces in the trier of fact a firm belief or conviction about the
existence of a fact to be proved.4
Our standard of review for insufficient evidence claims under
rule 404(3) is unsettled.5 When reviewing the sufficiency of the
evidence to support a conviction, the relevant question for an
appellate court is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.6 And whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same: An
appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such
matters are for the finder of fact.7
[3] We conclude that the standard for reviewing a suffi-
ciency of the evidence claim regarding a conviction applies
equally to whether, under rule 404, the State proved a defend-
ant committed an uncharged extrinsic crime or bad act.8 But
in applying that standard, we consider the State’s different
burden of proof under rule 404.9 Thus, we will affirm a trial
court’s ruling that the defendant committed an uncharged
extrinsic crime or bad act if, viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found with a firm conviction the essential elements
of the uncharged crime.
4 State v. Floyd, 277 Neb. 502, 763 N.W.2d 91 (2009).
5 Compare id., with State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361
(1999).
6 State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
7 State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011).
8 Compare State v. One 1985 Mercedes 190D Automobile, 247 Neb. 335,
526 N.W.2d 657 (1995).
9 See § 27-404(3).
STATE v. kOFOEd 	771
Cite as 283 Neb. 767

Having determined our standard of review, we set out the
facts supporting the court’s rule 404 ruling on the uncharged
extrinsic crime.
(b) Facts Relevant to Uncharged Extrinsic Crime of
Falsifying Evidence during the Gonzalez
Murder Investigation
In February 2010, the special prosecutor gave notice that he
intended to offer evidence of an uncharged extrinsic crime to
prove kofoed’s bias, intent, and lack of mistake or accident.
Summarized, the notice stated that the evidence would show
that in June 2003, kofoed falsified dNA evidence to cor-
roborate Ivan Henk’s confession. In June 2003, Henk confessed
that in January 2003, he killed his 4-year-old son, Brendan
Gonzalez, and put his body in an apartment building’s trash
container (dumpster). At a pretrial hearing, the court heard
extensive rule 404 evidence regarding these allegations.
The investigation of Brendan’s death began on January 6,
2003, when Brendan’s mother reported that he was missing.
Officers found blood on the garage floor and on a bicycle
and recliner in the garage. kofoed and another CSI division
employee, Clelland Retelsdorf, collected blood specimens from
the garage. The CSI division stored the specimens in its bio-
hazard room until it released the evidence to the plattsmouth
police department in June. dNA testing later showed that the
blood in several of these samples was virtually certain to have
been Brendan’s blood.
despite an extensive search, law enforcement officers did not
find Brendan’s body. But on June 2, 2003, Henk confessed to
investigators that he had killed Brendan. He told them that he
had put a comforter over a chair before decapitating Brendan
with a knife. He stated that he then wrapped Brendan’s body in
the comforter and took it to an apartment building’s dumpster.
After Henk led the investigators to the dumpster, they seized it
and took it to a storage building belonging to the plattsmouth
police department.
On the same day, June 2, 2003, kofoed and Retelsdorf proc-
essed the dumpster for potential dNA evidence. The evidence
showed that a hauling service had emptied it twice a week,
772 	283 NEBRASkA REpORTS

including the previous 6 months. Each time workers emptied
it, the contents would roll over the front angled portion of the
dumpster. It had flip lids that were often left open, and there
was no shelter over it. So the contents were frequently exposed
to rain and snow. When the police seized it, the dumpster had
fluid in the bottom.
kofoed and Retelsdorf removed the garbage and water and
then sprayed a chemical in the dumpster that produces a color
reaction to the presence of blood. They saw several reactions in
the bottom of it, particularly where the front side and bottom
met at an angle. kofoed collected wet debris from this area.
Retelsdorf described some of the debris that kofoed collected
as caked debris—a thick, dark substance that had built up on
the bottom. In the same area, Retelsdorf swabbed the dumpster
itself with cotton-tipped sticks.
kofoed took the collected debris back to the CSI division’s
crime laboratory for examination. From the total collection of
debris, he separated out two items: a piece of glass and a piece
of cardboard about the size of a credit card with dirt and hair
on it. He put the rest of the debris in a brown paper bag.
On June 5, 2003, kofoed filled out and signed a property
report, listing six items that he and Retelsdorf had collected
from the dumpster. kofoed labeled the items “S507-33” to
“S507-38,” or items 33 to 38 for ease of discussion. The report
contained the following items:
• Item 33: brown paper bag with the collection of debris from
the dumpster;
• Item 34: packaged cotton-tipped sticks that Retelsdorf used to
swab the bottom of the dumpster;
• Item 35: packaged piece of glass;
• Item 36: packaged piece of cardboard;
• Item 37: packaged round filter paper, stained pink; and
• Item 38: two packaged round filter papers.
Like the cotton-tipped sticks, investigators use the round
filter papers listed in this report to swab evidence for forensic
samples. Significantly, kofoed stated in the property report
that he used the filter papers in items 37 and 38 to swab
item 33, which was the debris in a paper bag. In addition,
he stated that he had tested the filter paper in item 37 with
STATE v. kOFOEd 	773
Cite as 283 Neb. 767

phenolphthalein, which is a chemical that tests for the pre-
sumptive presence of blood. The filter paper showed a pink
reaction. The record shows that when phenolphthalein reacts
to iron in hemoglobin or other substances, it will produce a
pink or purple color.
Retelsdorf testified that he was not present when kofoed
used the filter papers to swab the debris in item 33. But he
recalled kofoed telling him during a telephone conversation
that he had swabbed the debris in item 33 with a filter paper.
Retelsdorf further stated that sometime before June 5, 2003,
kofoed told him that he had obtained a positive reaction to
phenolphthalein for the presence of blood on a filter paper that
he had used to swab the debris in item 33.
Also on June 5, 2003, Retelsdorf took items 34 to 38 to a lab-
oratory at the University of Nebraska Medical Center (UNMC)
for testing. But he did not take item 33. kofoed testified that
he put item 33 back into the biohazard room and did not send
it for testing because of the testing costs. Instead, he sent only
the glass and cardboard, as the debris most likely to have dNA
evidence. Retelsdorf believed that item 33 would have been
stored in the biohazard room from June 2 (when the debris was
collected) to June 26, when the CSI division transferred cus-
tody of item 33 to the plattsmouth police department.
kelly duffy, an analyst at UNMC’s laboratory, tested the
items that Retelsdorf brought in on June 5, 2003. She stated
that if she had been given item 33 (the bag of debris), she
would have separated the debris, swabbed it, and tested the
filter papers for the presence of blood. duffy stated that items
35 and 36 did not test positive for blood, so she did not further
test them for dNA material.
duffy also attempted to extract and amplify dNA material
from the cotton-tipped sticks that Retelsdorf used to swab the
bottom of the dumpster, but she obtained only a partial dNA
profile. She reported finding alleles—variations of the dNA
sequencing found at specific genetic markers10—for only 2
10 See david H. kaye & George F. Sensabaugh, Jr., Reference Guide on DNA
Identification Evidence, in Reference Manual on Scientific Evidence 129,
139-47, 199 (Federal Judicial Center 3d ed. 2011).
774 	283 NEBRASkA REpORTS

out of the 16 sites on the dNA molecule that the laboratory
analyzes for individual variations. The two alleles that duffy
detected matched Brendan’s alleles for those genetic markers,
but duffy stated that the alleles were not uncommon.
In contrast, from the filter papers that kofoed had docu-
mented in the property report as swabs of item 33, duffy
obtained a full dNA profile that matched Brendan’s profile
at all 16 genetic markers. The probability of an unrelated
Caucasian or American Hispanic matching Brendan’s profile
was infinitesimally small.
In April 2009, the plattsmouth police department trans-
ferred custody of the evidence that kofoed and Retelsdorf had
collected during the Gonzalez murder investigation to an agent
with the Federal Bureau of Investigation (FBI). The FBI first
sent the evidence to its own dNA laboratory. Using phenol-
phthalein to test for reactions indicating blood, the FBI analyst
did not detect blood in any of the debris contained in item
33. In November, the FBI sent the evidence to the Serological
Research Institute (SERI), a private laboratory in California for
forensic evaluation and dNA analysis.
Two forensic serologists from SERI, kristi Spittle and
Brian Wraxall, testified for the State. Wraxall stated that by
using a chemical with slightly higher sensitivity to blood,
he and Spittle obtained presumptive positive test results for
blood when they tested some of the debris in item 33. But
they were unable to find any dNA material in this debris.
Nonetheless, because the UNMC laboratory had obtained a
dNA profile from kofoed’s filter paper swabs, the SERI ana-
lysts attempted to amplify any dNA material that might be in
the debris. They used a process called MiniFiler for degraded
dNA samples. The MiniFiler process also failed to produce
identifiable dNA.
The SERI analysts also failed to detect the presence of
human blood on the piece of glass (item 35) or the piece of
cardboard (item 36). These items initially tested positive for
the presumptive presence of blood. But after the analysts
extracted the material, it tested negative for the presence of
human blood. So the analysts did not further test them.
STATE v. kOFOEd 	775
Cite as 283 Neb. 767

In sum, the SERI analysts found only trace amounts of
dNA material, from which Wraxall could not obtain even a
partial profile or draw conclusions. Wraxall believed that after
6 months in a dumpster exposed to moisture, dirt, and tem-
peratures over 70 degrees, any dNA from Brendan would have
been degraded. Wraxall also testified that dNA can degrade if
it is exposed to heat or moisture and sometimes when exposed
to bacteria or enzymes. But it will remain stable for many
years if it is kept dry at a cool temperature. So he opined that
if item 33 had been stored in cool, dry conditions after kofoed
purportedly obtained dNA from swabbing it, he could have
replicated UNMC’s testing results, i.e., obtain a full dNA pro-
file matching Brendan’s profile, or at least he could have found
some of the same alleles.
In addition to Spittle and Wraxall, the State also submit-
ted a deposition of the chief of the FBI’s nuclear dNA unit
in Quantico, Virginia. All of these experts testified that it was
highly unlikely that investigators would have found nonde-
graded dNA in the dumpster after 6 months of exposure to the
elements and trash.
(c) kofoed’s Contentions
kofoed makes a twofold claim that the State failed to prove
by clear and convincing evidence that he falsified evidence
during the 2003 investigation of the Gonzalez murder. First, he
argues that the State’s forensic evidence failed to show that he
falsified evidence. Second, kofoed contends that the integrity
of the State’s forensic evidence was compromised because
items that were present when duffy tested the forensic samples
in 2003 were missing when they were tested in 2009. As part
of this claim, he asserts that gaps in the chain of custody show
that an opportunity existed for someone to have tampered with
the evidence to convict him of evidence tampering.
(d) Forensic Evidence Was Sufficient to prove
the Uncharged Extrinsic Crime
In determining whether kofoed had falsified evidence dur-
ing the 2003 investigation, the court had to resolve two
issues: (1) Whether kofoed took Brendan’s blood from the
776 	283 NEBRASkA REpORTS

blood specimens that kofoed had previously collected from
Brendan’s house and placed Brendan’s blood on the filter
paper swab that kofoed submitted for dNA testing; and (2)
whether he falsely claimed to have obtained the blood on that
filter paper from swabbing debris taken from the dumpster.
Resolving these issues depended upon one factual question:
Was it possible for kofoed to have found Brendan’s nonde-
graded dNA from blood in an open dumpster 6 months after
Henk allegedly placed Brendan’s body there?
kofoed argues that the FBI and SERI, the private laboratory
employed by the State, tested his collected samples only for the
presence of blood, rather than searching for any type of dNA.
He argues that the analysts mistakenly concluded that because
there was no blood in the samples, there could be no dNA.
Alternatively, he argues that the dNA in the samples could
have degraded over time.
But kofoed is mistaken in claiming that the analysts failed
to look for any type of dNA material. The record shows that
the SERI analysts searched for any dNA material in the debris
that tested presumptively positive for blood. It was not neces-
sary for them to analyze the entire contents of item 33 for trace
amounts of dNA. kofoed claimed to have found dNA in debris
on or near the bottom of the dumpster that tested presumptively
positive for the presence of blood. The evidence showed that
the chemical kofoed used for testing the debris reacts to red
blood cells. Although the chemical can also react to other
materials, the analysts’ focus on determining whether kofoed
could have found dNA on material testing presumptively posi-
tive for blood was obviously relevant to whether kofoed had
lied about his collection of evidence.
Additionally, the evidence showed that item 33 was stored
in a cool, dry place from the time that kofoed collected the
evidence in 2003 until the SERI analysts tested it in 2009.
According to the dNA experts, under those conditions, any
dNA in item 33 would have remained stable for a long period.
So they should have been able to replicate kofoed’s purported
finding of dNA on material that tested presumptively positive
for blood. And the record shows that their examination of the
evidence was thorough. But they found nothing.
STATE v. kOFOEd 	777
Cite as 283 Neb. 767

Furthermore, 	the 	evidence 	refuted 	kofoed’s 	alternative
explanation for the discrepancy between the testing results of
his filter paper swabs and the analysts’ testing results of the
actual debris. kofoed sent only his filter paper swabs (items
37 and 38) of the debris from the dumpster to the UNMC
laboratory for testing. He did not send the debris in item 33
to the laboratory. But at the rule 404 hearing, kofoed testified
that he had actually swabbed the pieces of glass and cardboard
(items 35 and 36) with the filter papers that he sent to UNMC
for testing (items 37 and 38). And he stated that before send-
ing the evidence to UNMC, he had obtained a presumptive
positive test for blood by testing the filter paper in item 37
with phenolphthalein.
But this change in his story did not help kofoed. Contrary
to kofoed’s testimony, duffy stated that she swabbed items 35
and 36 but that the filter paper did not test presumptively posi-
tive for blood. So she did not further test these items for dNA
material. The SERI analysts also failed to find human blood on
these items.
Furthermore, by the time of trial, testing of item 33 had
revealed that the debris from the dumpster did not contain
identifiable dNA material. This evidence conflicted with what
kofoed had stated in the property report—that he had obtained
a presumptive positive test for blood after swabbing item 33.
So the trial court could have concluded that kofoed contra-
dicted his statement in the property report in an attempt to
explain why in June 2003, he did not submit item 33 to the
UNMC laboratory for dNA testing. Obviously, if kofoed had
actually obtained a positive test for blood after swabbing the
debris from the dumpster, he would have wanted to have item
33 further tested for dNA material.
kofoed testified that to save money, he did not have the
debris in item 33 tested. But this contention was simply not
believable. The evidence showed that analysts routinely look
for chemical reactions indicating the presence of blood before
performing a full dNA analysis of a forensic sample. And
kofoed knew their procedures. Moreover, given the critical
role that the dNA evidence played in corroborating Henk’s
confession, kofoed’s purported concerns about testing costs
778 	283 NEBRASkA REpORTS

were not credible. And the special prosecutor bit into kofoed’s
credibility. On cross-examination, he showed that kofoed had
lied to bolster his credibility in other cases. kofoed admitted
that he had falsely stated under oath three times that he had a
bachelor’s degree in mathematics instead of a general studies
degree in political science. The court clearly rejected kofoed’s
explanations for not sending item 33 to the UNMC laboratory,
and we find no error in that conclusion.
Moreover, three of the State’s dNA experts testified that
given the conditions of the dumpster, they would not expect
nondegraded dNA to be present after 6 months. Even kofoed’s
expert conceded on cross-examination that if every time the
dumpster was emptied, most of the contents rolled directly
over the tested area, an examiner was unlikely to find a full
dNA profile from that area. Viewing the evidence in the light
most favorable to the State, we conclude it supports a firm
conviction that kofoed could not have obtained from the dump-
ster a nondegraded dNA sample, fully matching Brendan’s
genetic profile.
(e) Evidence Was Not Compromised
during closing arguments, kofoed moved to strike all the
testimony regarding items 33 to 38 because the State had failed
to established a chain of custody for this evidence. The court
overruled that motion. But kofoed’s motion did not focus on
the admissibility of any physical evidence. Instead, his claim at
trial and on appeal is another sufficiency of the evidence claim.
kofoed argues that the State did not meet its burden in the rule
404 hearing to prove that he tampered with evidence because
the evidence that the State relied on was compromised.
[4] In determining whether the State has established a suf-
ficient chain of custody, a court decides the issue on a case-by-
case basis, considering the following factors: the nature of the
evidence, the circumstances surrounding its preservation and
custody, and the likelihood of intermeddlers tampering with
the object.11 Although kofoed did not challenge the admissi-
bility of physical evidence, we believe that this same standard
11 See Glazebrook, supra note 3.
STATE v. kOFOEd 	779
Cite as 283 Neb. 767

applies when the issue is whether gaps in the chain of custody
or alterations in the evidence compromise the integrity of the
State’s evidence as a whole.
The most crucial piece of forensic evidence was item 33—
the bag of debris from the dumpster. The State established a
complete chain of custody for that evidence. It was not tested
at the UNMC laboratory but transferred from the CSI division
to the plattsmouth police department’s evidence custodian in
June 2003 and sent to the FBI in 2009. plattsmouth’s evidence
custodian from 2002 to 2007 specifically remembered item
33 and testified that no one had opened the bag or tampered
with it.
kofoed points to conflicting evidence on whether item 33
was completely sealed for 4 days when it was in the FBI
agent’s possession. But even if the bag was not completely
sealed in the agent’s possession, kofoed did not contend that
the debris in item 33 was not the evidence that he collected
or that the debris was in a substantially different form than
when he collected it. He did not present evidence explaining
how someone could have removed dNA from the debris he
collected. Nor did he show evidence suggesting that someone
had tampered with the debris. And we will not presume that
official misconduct could have occurred without any evidence
or argument showing that misconduct accounted for the test-
ing results.
The lack of custodial documentation for the tested items
from the dumpster similarly fails to show that the evidence
was compromised. Although the evidence failed to show when
the CSI division transferred custody of the tested items to the
plattsmouth police department’s evidence custodian, the evi-
dence was in the custodian’s possession. The custodian testi-
fied that the evidence room was kept locked and that anyone
wishing to check out evidence would have signed a property
report. Both the evidence custodian and her successor testified
that the evidence would not have come in contact with mois-
ture or liquids.
kofoed also contends that when SERI received his col-
lected samples, the evidence was missing hair from item 36
and tubes containing the tested pieces of his filter paper swabs.
780 	283 NEBRASkA REpORTS

We assume without deciding for this analysis that the FBI did
not possess the “microtainers” because it would have sent the
tested portions of the filter papers to SERI for additional test-
ing if it had possessed this evidence. But we do not agree that
the missing microtainers or the missing hair from item 36 com-
promised the integrity of the State’s other evidence.
It is true that the hair from item 36 was missing when SERI
received the evidence. But whether the tested items contained
dNA from human hair was not the focus of the investigation.
Instead, the analysts were trying to determine whether kofoed
had falsely claimed to have found dNA in debris testing pre-
sumptively positive for blood. Because item 36 was taken from
the debris in the paper bag (item 33), whether item 36 con-
tained dNA from blood would have been relevant to whether
kofoed could have obtained dNA from material testing positive
for blood in item 33. Because the investigation was focused on
dNA from blood, the loss of the hair did not compromise the
reliability of the testing showing that neither item 36 nor item
33 contained identifiable dNA from blood.
Moreover, in preserving the hair and the microtainers, kofoed
was the primary custodian for the tested items after UNMC’s
laboratory had performed its testing. Who more than kofoed
would have the incentive to undermine or sabotage the chain
of custody after the dNA testing to give himself cover if ques-
tions or accusations arose later? Simply stated, kofoed, as the
primary custodian, was the fox guarding the chicken coop. We
conclude that the trial court did not err in concluding that the
State’s evidence was sufficient to prove that in 2003, kofoed
falsified evidence during the Gonzalez murder investigation
despite the alleged missing microtainers and the alteration in
item 36.
2. C ourt C orreCtly exCluded kofoed’S expert
teStimoNy iN the rule 404 heAriNg
kofoed contends that the court erred in excluding part of
his testimony and his dNA expert’s testimony regarding dNA
testing in unrelated cases. kofoed’s offers of proof showed
that he and his expert would have testified about cases in
which analysts found identifiable dNA in evidence despite the
STATE v. kOFOEd 	781
Cite as 283 Neb. 767

unfavorable environments in which investigators had found
the evidence.
kofoed’s expert was another analyst who worked at UNMC’s
laboratory. She would have testified about finding dNA evi-
dence on a murder victim’s clothing after the passage of 3
months, despite exposure to moisture and dirt. The special
prosecutor objected to the evidence as relying on hearsay, irrel-
evant, and lacking foundation; the court sustained the objec-
tions. The court stated that the facts of the other case would not
help it decide the merits of the allegations against kofoed.
Similarly, kofoed would have testified that he knew from
dNA studies that analysts could identify the remains of some
individuals who died when the World Trade Center’s twin
towers collapsed in New York City, despite long-term fires
and a massive amount of debris. The court sustained the
special prosecutor’s foundation and relevance objections to
this evidence.
kofoed argues that these testimonies would have shown that
under similar, or more severe, environmental conditions, ana-
lysts have found dNA evidence. He contends that his evidence
would have refuted expert testimony that he could not have
found Brendan’s nondegraded dNA in the dumpster.
[5,6] In proceedings where the Nebraska Evidence Rules
apply, the rules control the admissibility of evidence; judicial
discretion is a factor only when the rules make discretion a
factor in determining admissibility.12 It is within a trial court’s
discretion to determine the relevance of evidence under rule
403, and a trial court’s decisions regarding relevance will not
be reversed absent an abuse of discretion.13
We agree with the trial court that the circumstances pre-
sented in kofoed’s offers of proof were not sufficiently
similar to be probative of whether kofoed could have found
Brendan’s nondegraded dNA on or near the bottom of a
trash dumpster. Again, the State’s analysts attempted to deter-
mine whether kofoed could have found nondegraded dNA
from blood cells allegedly deposited on debris in a trash
12 See State v. Nolan, ante p. 50, 807 N.W.2d 520 (2012).
13 See State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011).
782 	283 NEBRASkA REpORTS

dumpster—not dNA deposited on a victim’s clothing or dNA
from a human body.
The water, dirt, and trash in a dumpster presented a differ-
ent fact pattern. Even if water in the dumpster did not wash
out any alleged blood in it when the dumpster was tipped,
Wraxall testified that the combination of dirt and water in
the dumpster would have caused any dNA to degrade. He
further stated that blood cells rupture and break up in the
presence of water. Finally, even kofoed’s expert conceded
that if every time the dumpster was emptied, most of contents
rolled directly over the tested area, an examiner was unlikely
to find a full dNA profile from that area. kofoed’s offers of
proof did not show that dNA could survive in a nondegraded
form under similar circumstances. His assignment of error is
without merit.
3. SuffiCieNCy of the evideNCe to prove thAt
kofoed fAlSified evideNCe duriNg the
iNveStigAtioN of the StoCkS’ murderS
kofoed argues that the court erred in overruling his motion
for a directed verdict and finding him guilty of tampering with
evidence. The charge stemmed from kofoed’s claim that he
found Wayne Stock’s blood in the vehicle that investigators
suspected Matthew Livers and Nicholas Sampson had driven
to the Stocks’ residence on the night that they were murdered.
The State had to prove that on or about April 27 or sometime
on or before May 8, 2006, kofoed falsified the dNA evidence
during the investigation of Livers and Sampson for their sus-
pected role in the Stocks’ murders.
(a) Standard of Review
[7] When an appellate court reviews the sufficiency of
the evidence to support a conviction, it reviews the evi-
dence in the light most favorable to the prosecution. It deter-
mines whether any rational fact finder could have found the
essential elements of the crime beyond a reasonable doubt.14
And whether the evidence is direct, circumstantial, or a
14 See McCave, supra note 6.
STATE v. kOFOEd 	783
Cite as 283 Neb. 767

combination thereof, the standard is the same: An appellate
court does not resolve conflicts in the evidence, pass on the
credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact.15
(b) Additional Facts
In 2006, on April 16 or in the early morning of April 17,
the Stocks were murdered in their home. Their bodies were
discovered on April 17. They had both been shot in the head.
With kofoed in charge, investigators from the CSI division
processed evidence in the house for 3 days. Investigators col-
lected blood specimens and stored them in the CSI division’s
evidence room or biohazard room.
Investigators initially focused on Livers and Sampson as sus-
pects. Sharmon Stock’s family members told investigators that
they suspected Livers was involved. Livers is Wayne Stock’s
nephew, and Sampson is Livers’ cousin. Witnesses had reported
seeing a car near the Stocks’ residence in the early morning of
April 17, 2006. Their description of the car matched the gen-
eral description of a car owned by William Sampson (William).
William is Sampson’s brother.
Investigators believed that because the crime scene was cov-
ered in blood, the perpetrators would have transferred blood to
their vehicle after committing the crime. On April 19, 2006,
State patrol officers seized William’s car, a Ford Contour.
That same day, the State patrol towed it to the CSI division’s
garage. Investigators wanted to see if the car had either of the
Stocks’ blood in it.
On April 19 and 20, 2006, Christine Gabig, a forensic scien-
tist with the CSI division, thoroughly processed William’s car
for dNA evidence. Many parts of the car reacted to a chemical
test to locate blood. But kofoed told another investigator that
because William worked in heavy construction, the chemical
was probably reacting to iron in dirt instead of iron in blood.
UNMC’s laboratory later found no blood in the samples and
swabs that Gabig collected from William’s car. William testi-
fied that he had never loaned his car to Livers or Sampson.
Gabig also found no blood in Sampson’s vehicle.
15 See Howard, supra note 7.
784 	283 NEBRASkA REpORTS

Investigators had also sent in items from the Stocks’ resi-
dence for dNA testing, including a gold ring with an inscrip-
tion, which they had found on the kitchen floor. The gold ring
was the pebble that started a landslide. This lead ultimately
led investigators to Gregory Fester and Jessica Reid, who later
pleaded guilty to murdering the Stocks.16 Through inscription
records, investigators eventually traced the ring to the man
whose pickup Fester and Reid had stolen; they learned that the
man had put his ring in the pickup’s glove box.
UNMC’s laboratory also tested a marijuana pipe found in
the Stocks’ driveway. On April 25, 2006, the CSI investigators
learned that the pipe contained dNA from two people. The
laboratory’s June 29 written report tied the dNA on the ring
and the pipe to Fester and Reid and excluded Livers, Sampson,
and William as contributors. Nothing in the record shows that
in late April or early May 2006—when kofoed was accused
of falsifying the blood evidence that he claimed to have found
in William’s car—investigators knew about Fester and Reid.
Nor did they know of items found at the Stocks’ residence that
contained dNA evidence that pointed to other perpetrators and
excluded Livers and Sampson as contributors.
On April 25, 2006, Livers volunteered to be interviewed by
law enforcement officers and to take a polygraph test. during
the interrogation, he confessed that he and Sampson had killed
the Stocks and that one of them had thrown in the back seat
of the car the shotgun they had used. The testimony of several
witnesses suggests that Livers also stated he and Sampson
had used William’s car. Livers recanted his statements the
next day.
Investigators were frustrated. They had a confession that
involved William’s car but the CSI division investigators had
not found any blood evidence that linked Livers and Sampson
to the crime. The investigators were pressuring the CSI division
to retest items for blood evidence.
On April 27, 2006, William Lambert, a criminal investiga-
tor with the Nebraska State patrol, asked kofoed to recheck
16 See, State v. Fester, 274 Neb. 786, 743 N.W.2d 380 (2008); State v. Reid,
274 Neb. 780, 743 N.W.2d 370 (2008).
STATE v. kOFOEd 	785
Cite as 283 Neb. 767

the back seat of William’s car for gunshot residue to verify
Livers’ statements. kofoed completed a request form to have
Retelsdorf take photographs of the back seat. Retelsdorf drove
the CSI division’s van to the impound lot, where he met
kofoed. A 10-foot barbed wire fence and locked gate enclosed
the impound lot.
kofoed’s reexamination of William’s car is the pivotal event
for the charged crime. Much of the evidence focused on
kofoed’s inconsistent statements about his activities; these
statements were in his reports and made at different times dur-
ing the investigation. kofoed’s statements also conflicted with
Retelsdorf’s statements about the events of April 27, 2006.
kofoed told investigators that he decided to swab areas of
the car that Gabig might have missed and that he had previ-
ously reviewed Gabig’s work to learn what areas she had
already swabbed. He claimed to have set up a clean process-
ing area on the floor of the CSI division’s van by the side
door. He reported that he used a high intensity light to exam-
ine the driver’s compartment before swabbing it. He stated
that after obtaining about five negative swabs, he swabbed
under the dashboard with a filter paper. This swab produced
a presumptively positive test for blood. He laid the positive
filter paper on an envelope and asked Retelsdorf to test the
same area.
In contrast, Retelsdorf said that he parked the van 20 to 30
feet away from William’s car. Nor did he bring any equip-
ment to process the car for blood evidence because he knew
that Gabig had already done this and he believed that he and
kofoed were going to recheck the back seat for signs of a gun.
While Retelsdorf was examining the back seat, he could see
kofoed by the driver’s-side open door. Retelsdorf did not see
kofoed using a light as kofoed later claimed. Nor did he see
any items that would indicate that kofoed was processing the
car for dNA evidence.
After Retelsdorf put his camera back in the van, he asked
kofoed to look at an area of the back seat, which kofoed
did. Almost immediately after returning to the driver’s-side
open door, kofoed told Retelsdorf that he had just obtained a
presumptively positive test for blood. Retelsdorf did not see
786 	283 NEBRASkA REpORTS

kofoed swab the car. But kofoed showed Retelsdorf a filter
paper with a pink positive reaction and pointed to where he
had swabbed the car under the dashboard. Contrary to kofoed’s
statements, Retelsdorf still saw no items for processing evi-
dence, and he did not see a stain on the car’s interior. But he
swabbed the area that kofoed had indicated and obtained a
negative result. kofoed opined that he had probably consumed
the entire sample.
After examining the car, kofoed told Retelsdorf that they
would each write their own reports. Retelsdorf completed the
report of his photograph activities on the same day, April 27,
2006. Retelsdorf also reported in the CSI division’s event
log that he took photographs of the car on April 27. Unlike
Retelsdorf, kofoed dated his report May 8, 2006. And he
made statements about his processing of William’s car that
directly conflicted with Retelsdorf’s report and other evidence
as follows:
On 	08 	May 	2006 	at 	1800 	hours, 	CSI 	division
Commander kOFOEd processed the driver’s side dash
board of a Ford Contour . . . utilizing filter paper and
distilled water. The vehicle was secured in the [douglas
County Sheriff’s office] impound lot . . . .
. . . .
kOFOEd initially examined the driver’s side com-
partment utilizing high intensity oblique lighting. Upon
completion of the initial examination kOFOEd swabbed
the bottom edge of the driver’s compartment dashboard
below the steering wheel utilizing filter paper and dis-
tilled water. A presumptive test for blood was conducted
on a section of the filter paper by employing phenol-
phthalein. The presumptive test indicated positive.
. . . .
[The filter paper] will be secured in the CSI division
. . . until forwarded to [UNMC’s laboratory].
(Emphasis supplied.)
kofoed’s date of his activities was obviously false. And in
contrast to his statement in his report that the filter paper would
be secured, the evidence logs showed that kofoed never put
the filter paper that he collected in the CSI division’s evidence
STATE v. kOFOEd 	787
Cite as 283 Neb. 767

rooms. Also, in contrast to Retelsdorf’s report, kofoed did
not state in his report that Retelsdorf had been with him. He
reported going to the car alone for evidence collection.
kofoed’s property report showed that he sent the positive
filter paper swab to UNMC’s laboratory on May 9, 2006. The
laboratory’s June 29 report included its analysis of the filter
paper. It generated a dNA profile that completely matched
Wayne Stock’s dNA profile at all the loci obtained. kofoed
later admitted that besides his one filter paper swab—from
under the dashboard of William’s car—none of the approxi-
mately 450 pieces of evidence that the investigators had proc-
essed contained dNA evidence that tied Livers or Sampson to
the crime.
In January 2007, under plea agreements, Fester and Reid
both pleaded guilty to two counts of second degree murder. In
May 2008, the FBI began investigating kofoed. In September
2008, an FBI agent went to the Cass County property and
Evidence division and viewed a paper bag containing a shirt
stained with Wayne Stock’s blood. The CSI division had trans-
ferred this evidence to Cass County in June 2006. The sealed
bag had been opened and resealed with tape. It had kofoed’s
initials and identification code written on the tape used to
reseal the bag but no date. The CSI investigator who originally
marked and sealed the bag testified that kofoed’s initials were
not on the bag when he placed it in the CSI division’s biohaz-
ard room.
(c) Analysis
kofoed argues that the State’s circumstantial evidence did
not convincingly support an inference that he falsified dNA
evidence. He contends that because the circumstantial evidence
was weak, the more logical explanation for his finding of
Wayne Stock’s blood in William’s car was accidental contami-
nation from the crime scene.
[8,9] Circumstantial evidence is evidence which, without
going directly to prove the existence of a fact, gives rise to
a logical inference that such fact exists.17 But circumstantial
17 State v. Blackman, 254 Neb. 941, 580 N.W.2d 546 (1998).
788 	283 NEBRASkA REpORTS

evidence is not inherently less probative than direct evidence.18
In finding a defendant guilty beyond a reasonable doubt, a fact
finder may rely upon circumstantial evidence and the infer-
ences that may be drawn therefrom.19
kofoed contends that it did not make sense for him to
have planted dNA evidence on April 27, 2006, when there
were hundreds of pieces of evidence yet to be tested. We
disagree. The evidence shows that law enforcement officers
were focused on Livers and Sampson as suspects and were
pressuring the CSI division to find corroborating evidence to
verify Livers’ recanted confession. As the court found, there
was no evidence that the CSI investigators knew before May
8 that the dNA on items from the Stocks’ residence pointed
to other perpetrators and excluded Livers and Sampson as
contributors. So kofoed did not know that the dNA evi-
dence he falsified would be inconsistent with the dNA test-
ing results that were issued on June 29. And even if he had
learned that unknown persons were involved in the crime,
that evidence would not necessarily have precluded Livers’ or
Sampson’s guilt.
Moreover, kofoed’s deceit was amply demonstrated by the
false statements that he made in his reports and the inconsist-
ent statements that he made to investigators. First, kofoed
originally told FBI agents that before he obtained the positive
filter paper swab from under the dashboard of William’s car,
he first took about four filter paper swabs that tested negative
for blood. But he later told a grand jury that he obtained the
negative tests results from using cotton-tipped sticks instead of
filter paper swabs. As the special prosecutor argued, kofoed
had to change his original story that he had used only filter
papers to swab William’s car because it was inconsistent with
his claim that the filter papers in the presumptive blood testing
kit must have been contaminated with Wayne Stock’s dNA
from the crime scene. Under his original story, kofoed could
not explain why only the fifth filter paper in the testing kit
18 State v. Babbit, 277 Neb. 327, 762 N.W.2d 58 (2009).
19 State v. McGee, 282 Neb. 387, 803 N.W.2d 497 (2011).
STATE v. kOFOEd 	789
Cite as 283 Neb. 767

was contaminated but the first four were not. But the more
significant inconsistencies were those between the statements
in kofoed’s reports and Retelsdorf’s report.
As noted, contrary to the statement in kofoed’s report, he
never logged his positive swab into the evidence room. And
contrary to Retelsdorf’s report, kofoed falsely stated that he
had obtained the presumptively positive swab on May 8, 2006,
not April 27. kofoed argued only that he must have made a
mistake on his report.
But the log omission and the false May 8, 2006, date for his
evidence collection were not mistakes. He put the same false
date on the property report, the evidence envelope with the
filter paper, and the event log. Instead, the false date he used,
the omission of Retelsdorf’s presence from his report, and the
log omission showed that kofoed did not want his collection
of the blood specimen linked to his examination of William’s
car with Retelsdorf. He had to avoid this connection because
Retelsdorf knew that kofoed had not tested swabs for blood on
April 27.
The false statements strongly supported an inference that
kofoed lied to conceal that he was sitting on evidence that
might be needed to tie Livers and Sampson to the crime.
kofoed did not know when or if he would need that evidence.
And it was only after UNMC’s laboratory reported on May 4,
2006, that several items from the Stocks’ residence had tested
negative for blood that kofoed claimed to have found a blood
specimen in William’s car.
The inferences that the trial court could reasonably draw
from kofoed’s false statements were also consistent with
other circumstantial evidence of his guilt. kofoed not only
had access to Wayne Stock’s blood specimens, but the evi-
dence supported a finding that he had actually accessed a
sealed bag containing a shirt stained with Wayne Stock’s
blood and resealed it with his initials. Additionally, kofoed’s
review of Gabig’s work on William’s car before reprocess-
ing it for dNA evidence supported an inference that he was
ensuring that he did not find dNA evidence in an area that
she had already tested. Finally, the most damning evidence
of kofoed’s guilt was William’s testimony that he had never
790 	283 NEBRASkA REpORTS

loaned his car to Livers or Sampson. No evidence contra-
dicted that testimony.
We reject kofoed’s claim that the circumstantial evidence
showing that he falsified evidence was weak. We also reject
kofoed’s three alternative theories: (1) Livers and Sampson
were actually involved in the crime and used William’s car;
(2) someone besides kofoed planted the evidence; or (3) the
filter paper that kofoed used to swab the car was contaminated
with Wayne Stock’s blood from the Stocks’ residence. kofoed’s
theories bring to mind the old saw that theories are free; facts
are precious.
[10] A trier of fact must weigh the State’s evidence of guilt
in the light of the defendant’s presumption of innocence:
“Whether evidence is circumstantial or direct, ‘a [fact finder] is
asked to weigh the chances that the evidence correctly points to
guilt against the possibility of inaccuracy or ambiguous infer-
ence.’ . . . ‘If the [fact finder] is convinced beyond a reasonable
doubt, we can require no more.’”20 The State is not required to
disprove every hypothesis of nonguilt that is consistent with
the circumstantial evidence.21 Here, however, the court cor-
rectly determined that the evidence refuted kofoed’s alterna-
tive theories.
First, the court rejected kofoed’s theory that Livers and
Sampson were involved in the murders despite the State’s
dismissal of the charges against them and Fester’s and Reid’s
convictions for the crime. The court found that when deposed
by kofoed in 2010, Reid clearly stated that only she and Fester
killed the Stocks. The court also found credible William’s
testimony, which his wife corroborated. The court specifically
noted William’s testimony that he was not particularly close
to Sampson or to Livers and that he had never loaned either
of them his car. Finally, the court noted that even kofoed had
20 State v. Pierce, 248 Neb. 536, 547, 537 N.W.2d 323, 330 (1995), quot-
ing Holland v. United States, 348 U.S. 121, 75 S. Ct. 127, 99 L. Ed.
150 (1954). See, also, State v. Shambley, 281 Neb. 317, 795 N.W.2d 884
(2011), citing Mantell v. Jones, 150 Neb. 785, 36 N.W.2d 115 (1949).
21 See, State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998), abrogated on
other grounds, Nolan, supra note 12; Pierce, supra note 20.
STATE v. kOFOEd 	791
Cite as 283 Neb. 767

stated that the only possible explanation for his finding of the
blood evidence was cross-contamination of the filter paper. The
court concluded that even if a viable alternative explanation
for kofoed’s finding of the blood evidence were not available,
it would reject the argument that Livers and Sampson were
involved in the murders.
Second, the court rejected kofoed’s theory that someone
besides him could have planted the evidence. The court stated
that investigators had seized and secured the car, with limited
access to anyone. More important, it found that after Gabig
extensively processed William’s car on April 19 and 20, 2006,
no one requested further processing of the car to search for
dNA evidence. So the court concluded that no one would have
planted blood evidence in an obscure location of the car think-
ing that it would be discovered when the car was reprocessed
for dNA evidence.
The court also rejected the possibility of another officer’s
contaminating William’s car. It found that the special prosecu-
tor meticulously established (1) who was in the car and how it
was processed and (2) the officers processing the car had fol-
lowed correct procedures to avoid contaminating it. The court
found that the officers had not contaminated William’s car with
dNA from the Stocks’ residence.
Finally, the court rejected kofoed’s theory that the presump-
tive blood testing kit was contaminated from the crime scene.
But kofoed contends that the court was wrong. Relying on the
testimony of his coworker, Gabig, kofoed argues that the risk
of cross-contamination from a crime scene can never be elimi-
nated even if investigators properly handled their equipment.
Followed to its logical conclusion, Gabig’s opinion would
mean that dNA evidence is unreliable in any criminal case. We
reject that argument.
The evidence showed that CSI investigators are trained in
techniques to avoid cross-contamination of dNA evidence at a
crime scene, both in their collection of evidence and their use
of equipment. They are also trained to properly dispose of pro-
tective gloves and booties and to clean their equipment, includ-
ing presumptive blood testing kits, to avoid contaminating
evidence at a different location after leaving the crime scene.
792 	283 NEBRASkA REpORTS

Gabig testified about the correct way to use these kits without
contaminating them. And she did not cite instances in which
the filter papers in testing kits had been cross-contaminated
from a crime scene despite investigators’ proper handling of the
kits. Finally, the special prosecutor impeached Gabig with her
deposition testimony that the risk of contamination was min-
iscule or nonexistent if investigators properly used disposable
gloves when handling these testing kits.
More important, the court specifically found no CSI inves-
tigators had used these testing kits at the Stocks’ residence to
test stains for blood. That finding is supported by the evidence.
We also note kofoed never expressed his cross-contamination
theory until the summer of 2006, only after it became apparent
that someone else had committed the crime and that Wayne
Stock’s blood could not have been in William’s car. And
even after kofoed expressed his cross-contamination theory
to coworkers, he never initiated an investigation to determine
whether the testing kits were contaminated or whether investi-
gators had used the kits at the Stocks’ residence.
Most important, we agree with the court that kofoed’s claim
of a mistake in using the testing kits was not plausible in the
light of the evidence proving that he falsified dNA evidence in
2003. The court emphasized the significant similarities between
kofoed’s 2003 finding of Brendan’s dNA and his 2006 finding
of Wayne Stock’s dNA:
• In each case, law enforcement officers had identified the
person who they believed was responsible for the crime
and the suspect had made statements to officers implicat-
ing himself;
• In each case, officers were having difficulty finding evidence
to corroborate the suspect’s statements;
• In each case, under “unusual or unlikely circumstances,”
kofoed obtained a victim’s dNA specimen that was not
recovered by other investigators processing evidence and that
corroborated the suspect’s statements;
• In each case, kofoed had access to the victim’s blood
because the CSI division had performed the initial crime
scene investigation and stored items stained with the victim’s
blood in its evidence room.
STATE v. kOFOEd 	793
Cite as 283 Neb. 767

We conclude that the court did not err in determining that
cross-contamination did not account for kofoed’s finding of
Wayne Stock’s blood in William’s car. The evidence strongly
supported an inference that kofoed’s alternative theories arose
in hindsight from his need to explain how he had found this
evidence despite later evidence pointing to Fester and Reid as
the perpetrators. In short, he was tangled in his own web of
deceit. We conclude that cross-contamination was not a rea-
sonable possibility under these facts. Viewed in the light most
favorable to the State, the circumstantial evidence fully sup-
ports the court’s conclusion that the State had proved beyond a
reasonable doubt that kofoed falsified evidence to corroborate
Livers’ recanted confession.
IV. MOTIONS FOR NEW TRIAL
ANd TO RECUSE JUdGE
In April 2010, after the court found kofoed guilty, he moved
for a new trial. He claimed that the court should grant him
a new trial because of newly discovered evidence. kofoed’s
allegations that are relevant to his new trial claims on appeal
included the following:
(1) Lambert, the State patrol investigator in the Stocks’ mur-
der case, did not turn over to the special prosecutor his notes
about a conversation that Lambert had with darnel kush, an
investigator at the CSI division who worked under kofoed.
kofoed alleged that after kush contacted Lambert, Lambert
contacted the FBI about kofoed. kofoed alleged that Lambert’s
notes about his conversation with kush constituted material
that under Brady v. Maryland,22 he was entitled to receive from
the special prosecutor.
(2) douglas County deputy Sheriff Charles Rehmeier was
the trial judge’s cousin, and Rehmeier was a supporter of kush.
If the trial judge had disclosed his relationship to Rehmeier,
kofoed “would have determined whether to ask the Court to
recuse itself.”
22 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963).
794 	283 NEBRASkA REpORTS

(3) Cass County deputy Sheriff Earl Schenck, Jr., who
was assigned to the Gonzalez and Stock cases, had told an
individual that “‘blood would be found’” in the dumpster and
under the Ford Contour’s dashboard, “leading to the clear
impression” that Schenck knew about the evidence before it
was discovered.
kofoed also moved to recuse the trial judge from further
proceedings because of the judge’s undisclosed relationship
to Rehmeier. The court heard evidence on these motions in
April 2010.
1. evideNCe oN kofoed’S motioNS for
NeW triAl ANd reCuSAl
kush had worked in the CSI division since 1995 and
worked under kofoed beginning in 2000 or 2001. The evidence
showed that kush believed kofoed would lie to promote him-
self and that she had filed complaints against him. She also felt
kofoed was harassing her, and she had asked for a transfer to
“get away” from him. Because of her past complaints, she was
afraid to report her concerns about the Stock case. She believed
kofoed would say that she was trying to create problems for
him. In October 2007, she contacted Lambert because she had
formerly worked with him. In december, Lambert and kush
contacted an FBI agent about kofoed. kofoed claimed that the
special prosecutor had to give him Lambert’s notes about his
conversations with kush.
Regarding the motion to recuse, Rehmeier testified that he
was the trial judge’s second cousin. He said that he had last
seen the judge 25 years earlier. Rehmeier’s father had intro-
duced him to the judge at a funeral. Rehmeier testified that he
had not directly or indirectly discussed kofoed’s case with the
judge. kofoed presented evidence to show that after kofoed
was put on leave, Rehmeier told kush that she had done the
right thing and to “hang in there.”
Finally, kofoed questioned Schenck about conversations he
allegedly had during the Gonzalez and Stock murder investi-
gations. Schenck was asked whether he had told a woman he
knew that blood would be found in the dumpster. The woman
was one of Schenck’s estranged wife’s beauty salon customers.
STATE v. kOFOEd 	795
Cite as 283 Neb. 767

Schenck denied having that conversation with the woman. He
also denied having a conversation with his wife in the woman’s
presence in which he stated that he knew blood would be found
under the dashboard of William’s car. The woman did not
appear to testify.
2. triAl C ourt’S fiNdiNgS ANd ruliNgS
The court stated its findings from the bench. Regarding
the motion to recuse, the court first noted that a trial judge
is not a competent witness to speak to an issue raised about
the judge’s contacts with someone involved in the case.23 But
from the evidence presented, the court made the following
findings: (1) Neither Rehmeier nor kush had been a witness
in the case, (2) no one had mentioned Rehmeier’s name in the
hearings or at trial, (3) no evidence showed that Rehmeier had
participated in the investigation or talked to the FBI, and (4)
none of the court’s findings at the close of trial involved kush
or Rehmeier.
The court further stated that although Rehmeier shared the
judge’s last name, the evidence showed that Rehmeier was
the judge’s distant relative and that Rehmeier had not had any
contact with the judge in 25 years. The court concluded that
no reasonable person who knew the circumstances of the case
would question the judge’s impartiality. It overruled the motion
to recuse and the motion for a new trial to the extent it was
premised on his relationship to Rehmeier. Additionally, the
court concluded that the other issues kofoed had raised involv-
ing Lambert, Schenck, and kush were issues of credibility
that would not have substantively changed how the case was
decided. It overruled kofoed’s motion for a new trial.
3. motioN to reCuSe
kofoed argues that the court erred in overruling his motion
to recuse because the trial judge had a duty to disclose his fam-
ily relationship to Rehmeier. kofoed argues that if the court
had disclosed this information, he would not have waived a
jury trial and potentially would have asked the judge to recuse
himself from presiding over the trial.
23 See Neb. Evid. R. 605, Neb. Rev. Stat. § 27-605 (Reissue 2008).
796 	283 NEBRASkA REpORTS

(a) Standard of Review
[11] A motion to recuse for bias or partiality is initially
entrusted to the discretion of the trial court, and the trial court’s
ruling will be affirmed absent an abuse of that discretion.24
(b) Analysis
[12,13] 	Under 	the 	Nebraska 	Revised 	Code 	of 	Judicial
Conduct, a judge must recuse himself or herself from a case
if the judge is actually biased against a party or if the judge’s
impartiality could reasonably be questioned.25 A defendant
seeking to disqualify a judge because of bias or prejudice bears
the heavy burden of overcoming the presumption of judicial
impartiality.26 Absent a showing of actual bias or prejudice, a
litigant must demonstrate that a reasonable person who knew
the circumstances of the case would question the judge’s
impartiality under an objective standard of reasonableness.27
kofoed does not claim that the judge’s statements or con-
duct showed actual bias. Instead, he claims that a reason-
able person would have questioned the judge’s impartiality.
Section 5-302.11(A) of the judicial code sets out specified
circumstances when a judge’s impartiality could be reasonably
questioned. Some of those circumstances include a judge’s
personal relationship to a person connected with the litiga-
tion. Section 5-302.11(A)(2) disqualifies a judge or requires
disclosure of the disqualifying relationship in the follow-
ing circumstances:
The judge knows that the judge, the judge’s spouse or
domestic partner, or a person within the fourth degree of
relationship to either of them, or the spouse or domestic
partner of such a person is:
(a) a party to the proceeding, or an officer, director,
general partner, managing member, or trustee of a party;
24 Huber v. Rohrig, 280 Neb. 868, 791 N.W.2d 590 (2010).
25 Neb. Rev. Code of Judicial Conduct § 5-302.11 (previously found at Neb.
Code of Judicial Conduct § 5-203(E)); Tierney v. Four H Land Co., 281
Neb. 658, 798 N.W.2d 586 (2011).
26 See Nolan, supra note 12.
27 E.g., id.
STATE v. kOFOEd 	797
Cite as 283 Neb. 767

(b) acting as a lawyer in the proceeding;
(c) a person who has more than a de minimis interest
that could be substantially affected by the proceeding; or
(d) likely to be a material witness in the proceeding.
The court specifically found that Rehmeier and kush were
not witnesses and that Rehmeier’s name was never mentioned
during the trial. The record supports that finding and thus fails
to show that the trial judge could have known that Rehmeier
was even a potential witness. More important, the “fourth
degree of relationship” is a term defined under the code
to include the following family relationships: “great-great-
grandparent, great-uncle or great-aunt, brother, sister, great-
great-grandchild, grandnephew or grandniece, or first cousin.”
The code does not disqualify judges for their relationship to a
second cousin who has some connection to the litigation, even
if that connection had been shown. So Rehmeier was not a per-
son whose relationship to the judge, or whose interests or con-
nection to the litigation, could have triggered this provision.
Even apart from the lack of any showing that the circum-
stances set out in the code applied, no reasonable person
would have questioned the trial judge’s impartiality based on
his distant relationship to Rehmeier. Rehmeier’s contact with
the judge was limited to a long-ago introduction. And kofoed
introduced no evidence to suggest that Rehmeier had com-
municated with the judge about the case or anything else. This
assignment of error has no merit.
4. motioN for A NeW triAl
[14,15] A new trial can be granted on grounds materially
affecting the substantial rights of the defendant.28 A criminal
defendant who seeks a new trial because of newly discovered
evidence must show that if the evidence had been admitted at
the former trial, it would probably have produced a substan-
tially different result.29
kofoed’s claim that he would not have waived a jury trial if
he had known about the judge’s relationship to Rehmeier fails
28 State v. Nelson, 282 Neb. 767, 807 N.W.2d 769 (2011).
29 Id.
798 	283 NEBRASkA REpORTS

for the same reason that his recusal claim fails. Because a rea-
sonable person would not have questioned the judge’s impar-
tiality, kofoed cannot show that demanding a jury trial would
have produced a substantially different result.
In addition to his claim regarding Rehmeier, kofoed makes
the following claims about Lambert: kofoed contends that
Lambert’s notes should have been disclosed under Brady.30
He argues that if Lambert had disclosed his notes about kush,
he would have called kush to testify. His strategy would have
changed to “whether or not it was reasonable to think that
either Lambert or kush, amongst others, could have planted
evidence to fulfill their wish of destroying [kofoed].”31 His
argument about Schenck’s alleged statements to his estranged
wife’s customer is apparently the same—he would have used
this evidence to bolster his claim that someone else planted the
dNA evidence in William’s car. kofoed grasps at twigs think-
ing they are redwoods.
First, kofoed did not prove that Schenck stated to any-
one that he knew dNA evidence would be found during the
Gonzalez and Stock murder investigations before it was found.
Schenck denied making these statements, and kofoed’s witness
did not appear to testify.
Second, even if Lambert’s notes were material evidence that
kofoed was entitled to know about—a question we need not
decide—under Brady, he must also show a reasonable proba-
bility that if the evidence had been disclosed to the defense, the
result of the proceeding would have been different.32 A reason-
able probability of a different result is shown when the State’s
evidentiary suppression undermines confidence in the outcome
of the trial.33 kofoed cannot satisfy that standard.
kofoed’s claim of prejudice from not knowing about either
Lambert’s notes or Schenck’s alleged statements is that he
was not given the opportunity to prove that someone else
30 See Brady, supra note 22.
31 Brief for appellant at 46.
32 McGee, supra note 19.
33 Id.
STATE v. kOFOEd 	799
Cite as 283 Neb. 767

could have planted the dNA evidence in William’s car. This
theory is the same “mystery person” theory that he presented
at trial.
But this theory was soundly rejected by the trial court, and
we agree with the court that this “new” evidence would not
have changed the results. Nor does it undermine confidence in
the outcome. It is inconsequential whether kofoed claims that
the mystery person’s motive for planting the evidence was to
frame Livers and Sampson, or to frame kofoed. The fundamen-
tal problem with his theory exists in either circumstance: How
could someone else have known kofoed would search for dNA
evidence in an obscure part of William’s car when no officer
had requested the car to be reprocessed for dNA evidence?
Who, besides kofoed, would have known that he would take it
upon himself to do so?
Throughout this prosecution, kofoed’s defense strategy has
been an attempt to deflect evidence of his guilt by floating
theories of a mystery perpetrator or careless investigators. At
the rule 404 hearing, at trial, and on appeal, he has claimed that
someone else could have tampered with the evidence to frame
him. The irony of his defense is rich, and his theories plenti-
ful. But “[t]here is nothing more horrible than the murder of a
beautiful theory by a brutal gang of facts.”34 The court did not
err in overruling kofoed’s motion for a new trial.
V. CONCLUSION
Regarding the extrinsic crime at the rule 404 hearing, we
conclude that the evidence was sufficient to prove that in 2003,
kofoed falsified dNA evidence during the Gonzalez murder
investigation. Gaps in the chain-of-custody documentation did
not undermine the integrity of the forensic evidence when the
record shows that this evidence was in the evidence custodian’s
possession and stored under proper conditions during the rele-
vant time period. Similarly, alterations in the forensic evidence
after it was tested did not compromise the evidence. The altera-
tions were not relevant to the testing results, and kofoed was
34 Frequently ascribed to 17th-century French writer, François duc de La
Rochefoucauld.
800 	283 NEBRASkA REpORTS

a primary custodian in the chain of custody. The court did not
err in excluding expert testimony about circumstances in which
investigators and analysts were able to find dNA evidence in a
harsh environment. Those circumstances were not sufficiently
similar to the facts at hand to be probative of whether kofoed
could have found nondegraded dNA in a dumpster after 6
months’ exposure to the elements and trash.
For the charged crime of tampering with evidence in the
Stock murder investigation, we conclude that the inferences
reasonably drawn from the circumstantial evidence were suf-
ficient to prove that in 2006, kofoed falsified dNA evidence
during the Stock murder investigation to corroborate a suspect’s
recanted confession. The evidence did not support his theory
that cross-contamination from dNA at the Stocks’ residence
could have contaminated the testing kit that kofoed later used
to find a victim’s dNA in a vehicle that investigators believed
the suspects had used.
The trial judge properly declined to recuse himself from
hearing kofoed’s motion for a new trial. No reasonable person
would have questioned the trial judge’s impartiality under these
circumstances. The court correctly denied kofoed’s motion
for a new trial based on evidence that kofoed argued would
have bolstered his claim that someone else planted the dNA
evidence in William’s car. The car had already been thoroughly
and unsuccessfully examined for dNA evidence, and no offi-
cer had requested further testing. So no one but kofoed would
have known that kofoed would nonetheless search for, and
find, a dNA sample in an obscure location of the car.
A ffirmed.
heAviCAN, C.J., participating on briefs.
gerrArd, J., not participating in the decision.
STATE v. kOFOEd 	801
Cite as 283 Neb. 767